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Wednesday, 29 August 2018

What is good legal drafting? In the modern era, good legal drafting, is just good English drafting.

Yes, you check legislation and case law, but then you set out the positions of the parties in as close to ordinary everyday speech as you can, and in as accurate and specific manner as you can.

Legal drafting is just writing, and writing is just communicating with letters and grammar instead of vibrations in the air.

Obviously, there are some rules, such as keeping as close to one point in a clause as possible, and numbering your pleadings and paragraphs in affidavits, but those are simply an outside form to help you, your opponent and the court out a little.

So, get over this idea that good legal drafting is some sort of 'witchcraft' ritual where you always must use the perfect words, and where 'spells' that have already succeeded are much sought after. Rather look at the substance and argument which succeeded for others.

Look to the case law, legislation, regulations, and to the logical parts of your inner mind and soul. Make a case with your words, one which would convince an average person, and even convince someone who often has words thrown their way. The basics of logical argument are essential here: make sound, cogent points. Use logic as a weapon.

Draft from your mind. Write out a case for what you want and then pray to the court for it, or demand it of your opponent, or place a spot for parties to sign it.

It isn't nearly as difficult, and pleadings, affidavits, and legal documents (besides the sort of stuff that goes to the deeds office) are not nearly as fragile as you might have been brought up via university to believe. Law is practical, and while process and form are important, far more of it is substance than anything else.

Monday, 27 August 2018

The rule of law is severely damaged when the state does not hold itself to its contract with its citizens. Over recent decades, law has slipped to the extent that South Africa now has several violent riots daily, most of which never make the media.

The lawlessness across the country has been accelerated since the new presidency took over, with government announcing plans to change the covenant it has with the people to get rid of one of the three key stone human rights, the right to property.

Firefighters now need to wear protective gear, and fire stations, like libraries and schools, risk being burnt down.

With crime rates similar to war zones, and widespread unrest, South Africa, unlike upmarket areas, has many of the characteristics of a failed state, this can be traced back to a lack of respect by the government for the rule of law, tracing back to the end of the presidency of Thabo Mbeki.

So, why are there areas of the country which are not so deeply hurt by the gradual collapse of the state? A good portion of arrests in for instance Northcliff, are not effected by police but by private security. In true anarchocapitalist nature, private security companies have effectively replaced the police in areas that can afford them, providing patrols, armed response, and arresting suspects.

Likewise, private investigators and lawyers often get involved in the investigation and reporting of crimes, to counter a lack of capacity in the police, and community policing forums also play a massive role in keeping calm on the surface of the upmarket parts of the country.

The further the state has collapsed, the more the private sector has in some areas picked up the slack, for now.

I am an ex officio commissioner of oaths, as an admitted (and in my case practising) attorney.

'Ex officio commissioners of oaths.—The Minister may, by notice in the Gazette, designate the holder of any office as a commissioner of oaths for any area specified in such notice, and may in like manner withdraw or amend any such notice.'

S 6 of the JUSTICES OF THE PEACE AND COMMISSIONERS OF OATHS ACT NO. 16 OF 1963

The regulation under which ex officio commissioners of oaths are appointed is: GN 903 of 10 July 1998: Designation of Commissioners of Oaths in terms of section 6 of the Justices of the Peace and Commissioners of Oaths Act, 1963, which states:

'I, Abdulah Mohamed Omar, Minister of Justice, hereby, under section 6 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963), designate the holders of the offices listed in the Schedule to be commissioners of oaths for the Republic of South Africa with effect from the date hereof.'

S 2 of the said schedule makes the following commissioners of oaths ex officio:

'2. Administration of justice

(a)

Advocate admitted in terms of the Admission of Advocates Act, 1964 (Act No. 74 of 1964); Admission of Advocates Act, 1964 (Act No. 74 of 1964) as applicable on 6 December 1977 (former Republic of Bophuthatswana); and the Admission of Advocates Amendment Proclamation No. 1 of 1992 (former Republic of Venda).

Sworn translator admitted and enrolled in terms of rule 59 of the Rules of the Supreme Court of South Africa; Supreme Court of Bophuthatswana Act, 1982 (Act No. 32 of 1982) (former Republic of Bophuthatswana); and Supreme Court Decree No. 43 of 1990 (former Republic of Ciskei).'

Many other offices in various areas of public life are also made ex officio commissioners of oaths in terms of the regulation, with various offices being assigned the status under the following main categories, to quote the index of the schedule:

Board of Executors as defined in regulation 1 of the regulations published by Government Notice R.910 of 22 May 1968

11A.

Bosasa Security (Pty) Ltd

11Ba.

BoE Stockbrokers (Pty) Limited

11Bb.

BoE (Pty) Limited

12.

Building society registered in terms of the Building Societies Act, 1986 (Act No. 82 of 1986)

13.

Census and statistics

14.

Chambers of industries and of commerce, national organisations/associations registered in terms of section 21 of the Companies Act, 1973 (Act No. 61 of 1973), and trade unions and employers’ organisations or federations of such trade unions or employers’ organisations registered in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995)

14A.

Chartered Secretaries Southern Africa

15.

Co-operative registered or deemed to be registered in terms of the Co-operatives Act, 1981 (Act No. 91 of 1981)

15A

Co-operative incorporated as a company in terms of section 161A of Co-operatives Act, 1981 (Act No. 91 of 1981), read with section 63 of the Companies Act, 1973 (Act No. 61 of 1973)

16.

Council for Mineral Technology established in terms of the Mineral Technology Act, 1989 (Act No. 30 of 1989)

16A.

Credo

17.

CSIR

18.

Department of Correctional Services

19.

Development Bank of Southern Africa

20.

Durban City Police

21.

Educational institution

22.

Eskom

23.

First National Asset Management and Trust Company (Proprietary) Limited

23A.

Financial Planning Institute of Southern Africa

24.

Foundation for Research Development including the National Accelerator Centre, the South African Astronomical Observatory and the Hartebeesthoek Radio Astronomy Observatory

25.

Gold Fields Security Limited

26.

Health services

26A.

27.

Special Investigating Unit

28.

Indigent Subsidy Scheme of the Municipality of Port Elizabeth

29.

Industrial Development Corporation of South Africa Limited, established by section 2 of the Industrial Development Act, 1940 (Act No. 22 of 1940)

It was a little book with a red cover. It was an English translation published in India. I drove to the centre of town, into inner Johannesburg, to buy it. During break time at school and whenever I had time, I read it cover to cover. I studied it.

I had been considering going into law, and knew that this little book of rules was based on the same Roman Law from which we get our legal system. I was determined to learn it for its basic concepts, to improve my legal mind before varsity. I even joined discussion forums on that mini legal system, and discussed it and advised people online about it. I followed blogs on it and its application.

Everyone hears about systems like Sharia Law, not many know of the Code of Canon Law of the Roman Catholic Church, which has a legal tradition spanning back further than Sharia law, and which has even, in parts, been incorporated into our own law.

The idea that one must have an evil mind to be guilty: intention or negligence, and so much else, is stolen from early canon law and the morality system surrounding it.

Legal concepts like common purpose or automatic operation of law were much easier to grasp in university law classes, because I had studied another offshoot of Roman law.

If you want to improve your understanding of South African law, studying Canon Law goes a long way. Studying law in miniature teaches you the concepts you need. It sets your mind to the right default settings.

Monday, 13 August 2018

A lot of lawyers are complaining they are struggling now. This should not be a surprise with our economy in possibly its worst conditions ever, despite optimistic media messages constantly pumped out, the figures are not lying. Consumers are stockpiling what they can of cash and essentials. Legal services are often seen as a luxury purchase and fall by the wayside.

There is still money to be made in law in this environment, and it is in what I have always called bread and butter legal services. People still need contracts, wills, marital contracts. There are still people facing labour disciplinary matters and criminal prosecution. There is still money to be made in law, in the bread and butter, in the essential bare bones legal services.

Don't charge what your law degree is worth in your mind. Charge what the market is prepared to pay for your services. Downscale from that expensive office, lay off unnecessary staff. Reduce your expenses, and make sure you are serving paying clients, whether via having all funds in trust first before each stage, or by stopping work the moment payment stops, and until the value of each account is zero again.

There is money to be made in law, but prudence is required, and, with it, the capability to swallow your pride and do less 'glamourous' work and to work within your means. Bread and butter work is the foundation of every law firm.

If you are losing clients because of the current rainy day, find something that makes money for your firm. Study new areas of law if need be. Do what is needed so you can stay in business.

This slump has existed for at least two years, now. It is something law firms can survive, but you need to be creative and prepared to engage in adaptivity if you are going to survive. Find a niche and batter down the hatches. With the way things are going, things will likely get a lot worse before they get better. Focus on the essentials, both in providing them to your clients, and in keeping your lifeblood enterprises afloat in the tempest upon us. You can be glamourous once again, when blue skies return to our shores, when our battered economy rises again. For now, provide the basic services the public can still afford.

Saturday, 11 August 2018

Unisa produces more LLB graduates than any other university. They thus make up the majority of applicants for positions.

Many Unisa graduates do get articles and do become attorneys.

There are firms who prefer Wits or UCT or Rhodes graduates, but that is a personal preference. Likewise, there are attorneys who prefer to hire Unisa graduates for their firms. It certainly is not a majority with a bias against Unisa.

If anything, more graduates have Unisa as their alma mater, and thus you are more likely to meet a Unisa graduate who washed up. You are, by the same grain, more likely to find a Unisa graduate who made it.

In any case, firms pay very little mind to a candidate's university background, whether the school or their academic achievements. There is a massive gap between knowledge which is valued in universities, and the essential knowledge needed to practise law.

A law degree is important because it is required for most law jobs, but anyone who leaves university for the real world is at that moment starting their real educational journey.

No need to get all deep and philosophical. Wisdom is knowledge coupled with good judgement. Simple as that.

Oxford defines knowledge as:

'knowledge /ˈnɒlɪdʒ /
▸ noun [mass noun]
1 facts, information, and skills acquired through experience or education; the theoretical or practical understanding of a subject:
a thirst for knowledge
her considerable knowledge of antiques.
▪ the sum of what is known:
the transmission of knowledge.
▪ information held on a computer system.
▪ Philosophy true, justified belief; certain understanding, as opposed to opinion.
2 awareness or familiarity gained by experience of a fact or situation:
the programme had been developed without his knowledge
he denied all knowledge of the incidents.
3 archaic sexual intercourse.
– PHRASES
come to someone's knowledge
become known to someone.
to (the best of) someone's knowledge
as far as someone knows; judging from the information someone has:
the text is free of factual errors, to the best of my knowledge.
– ORIGIN Middle English (originally as a verb in the sense ‘acknowledge, recognize’, later as a noun): from an Old English compound based on cnāwan (see know).'

And wisdom as:

'wisdom /ˈwɪzdəm /
▸ noun [mass noun] the quality of having experience, knowledge, and good judgement; the quality of being wise:
listen to his words of wisdom.
▪ the fact of being based on sensible or wise thinking:
some questioned the wisdom of building the dam so close to an active volcano.
▪ the body of knowledge and experience that develops within a specified society or period:
Eastern wisdom.
– PHRASES
in someone's wisdom
used ironically to suggest that someone's action is not well judged:
in their wisdom they decided to dispense with him.
– ORIGIN Old Englishwīsdōm (see wise1, -dom).'

Then, there is the difference between being wise and being knowledgeable, again, I quote from Oxford:

'wise1 /wʌɪz /
▸ adjective having or showing experience, knowledge, and good judgement:
she seems kind and wise
a wise precaution.
▪ sensible or prudent:
it would be wise to discuss the matter with the chairman.
▪ having knowledge in a specified subject:
he is wise in the ways of haute couture.
▪ (wise to) informal aware of, especially so as to know how to act:
at seven she was already wise to the police.
▸ verb [no object] (wise up) [often in imperative] informal become aware of or informed about something:
wise up to the flavours of North Africa.
– PHRASES
be wise after the event
understand and assess a situation only after its implications have become obvious:
it is easy to be wise after the event.
be none (or not any) the wiser
not understand something, even though it has been explained:
she said an awful lot but he wasn't any the wiser
I am still none the wiser about the meaning of the word.
– ORIGIN Old Englishwīs, of Germanic origin; related to Dutch wijs and German weise, also to wit2.'

It is harder to make it as an advocate, and far more stressful. As an attorney, I can deal with more than just matters going to court, meaning I have more opportunity to work, as an attorney, than an advocate at a similar stage in their career.

Some advocates do make more in an hour or a day than an attorney, but those hours and days are scarcer for most advocates than attorneys.

Don't make the mistake of judging based on on hourly rates. e.g. one advocate, let us call him Jack, may charge R 25000 a day, and work one day a month. An attorney, let's call him John, may earn a thousand rand an hour and work 100 hours a month. Who is better off?

Thursday, 9 August 2018

In theme, they get a reply from someone saying they fear something they want, and in particular, a law degree.

'Omg I'm so scared I'll actually complete my law degree'.

For many doing an LLB bachelor of laws degree, today, that should be a fear. A law degree does not get 80% of graduates entry to the profession. Make sure you count the cost beforehand.

Get your learner's licence and sign up for driving lessons: get a licence. 90% of firms will reject you out of hand for not having a licence: driving is a big part of the job of both candidates and attorneys. Improve your English: write everything you write like a legal letter, read novels and case law and sign up for extra English lessons if need be. Get a tutor. Get a student's discount at centres which teach you how to speak clearly and in a way everyone can understand you. I used to go through the dictionary a word at a time to check my pronunciation of every word against the International Received English standard, using my knowledge of the International Phonetic Alphabet to do so. The Received English in non-American dictionaries is the accent of lawyers across the commonwealth, and much of South Africa. It helps, because everyone understands that accent, and the easier to understand you are, the more likely people are to believe you, per studies. By the same stroke, stop using big words where they are not the most appropriate word. Practise debate and arguing. Argue online and in person. Blog. YouTube. Get used to speaking in front of people and of it mattering. You can't swear in court, except to God, so learn to be respectful, polite and courteous in all your interactions.

Because, wasting four or seven years of your life on a 'sure thing' and then never using it, is something you should fear. The world, outside of university, knows that it owes you, personally, nothing. If you are not prepared to do everything possible to succeed in this profession, you are likely to land up washed up upon the shore, with a degree that was not worth the time and effort you spent on it.

Tuesday, 7 August 2018

I answered the phone. They knew who I was, but checked to confirm. They loved my writing and thought I would be perfect for a column in their nationally syndicated newspaper, I'd just have to pay them R25000.00 a year, and I would get a column to write for the subscriber only exclusive Times Select publication of the Times and Sunday Times. I of course said no.

Times Select aren't the only ones in the business of selling advertorials to attorneys.

Lawyer Monthly consistently sends me emails about how impressed they are with me, and how they would like to do a centrefold profile or even magazine cover of me, for a price. I don't reply to their periodic 'interview request'.

I have seen colleagues link to or post pictures of similar profiles and gushing advertorials from their LinkedIn profile. It seems we as a profession have gone beyond giving free advice, and are now expected to pay good money to give advice in publications the public pay money to read.

I write articles on law on my blogs, and certainly do the odd advert in a community group. I also tend to enjoy answering legal questions, and helping people out. Law is more than a career to me. It is actually a passion I enjoy.

I have had someone suggest to me I should pay for an advertorial in the local paper, others suggest having journalists on speed dial to talk to about the latest news stories. I don't find either idea appetizing. I don't like the idea of advertorials, or of being the latest 'legal expert' being interviewed on whether selling unripe bananas violates consumer protection law. My personal inclination is to say no to the various 'advertorial opportunity' pitches I receive.

Am I wrong to be sceptical in this sort of thing? Am I just being old fashioned? Have advertorials worked for you?

Saturday, 4 August 2018

What is right of appearance as it appears in most job adverts for candidate attorney positions?

It usually means they are looking for someone with an LLB degree. It is assumed you know they mean they want someone who would qualify for right of appearance while working for them.

In a small minority of cases, they want someone who either is ceding from another firm where they had right of appearance and were in all likelihood appearing in court, or have right of appearance in regional court, either as a former advocate or as a candidate who has been serving articles long enough.

In all cases, a new right of appearance certificate must be applied for and issued for the subsequent contract of articles, under the name of the new principal as principal, and under your name as their candidate attorney.